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Fundamental Rights
Study Material for CLAT and other law entrance exams
Introduction
The word fundamental suggests that these rights are so important that the Constitution has separately listed them and made special provisions for their protection.
The Constitution itself ensures that they shall not be violated by the government, no organ of the government can act in a manner that violates them.
Where ordinary legal rights are protected and enforced by ordinary law, Fundamental Rights are protected and guaranteed by the constitution of the country.
Origin
The idea for fundamental rights was taken from the ‘Bill of Rights’ of the United States of America (U.S.A).
Basically, they were known as Basic Rights.
Need
It is important for the all-around development of citizens of the country.
To ensure the existence of every person in a dignified manner.
During our freedom struggle, the leaders of the freedom movement had realised the importance of rights and demanded that the British rulers should respect the rights of the people.
The Motilal Nehru committee had demanded a bill of rights as far back in 1928, but they got no results in return.
When India became independent and the Indian Constitution was being prepared, the Constitution listed the rights that would be specially protected and called them 'Fundamental Rights’.
Fundamental Rights
We have six Fundamental Rights in the present Indian Constitution but there were seven fundamental rights till the 44th amendment 1978. Originally, the constitution provided for seven Fundamental rights, these are:
Right to Equality (Article 14-18),
Right to Freedom (Article 19-22),
Right against exploitation ( Article 23-24),
Right to freedom of religion (Article 25-28),
Cultural and Educational Rights (Article 29-30),
Right to property (Article-31),
Right to Constitutional Remedies (Article-32).
But later on, the right to property was removed from the list of fundamental rights by the 44th Amendment Act of 1978. So now there are only six fundamental rights in the Constitution of India.
The six Fundamental Rights which are given to all citizens of India are:
Right to Equality (Given under Article 14-18 of the Indian Constitution)
All citizens are equal before the law and shall be equally protected by the laws of the country. The constitution forbids any discrimination against citizens on the basis of their religion, caste, or sex.
As per the right, even the State cannot discriminate against anyone in matters of employment. For example, a woman can join the army if she is willing and qualifies for the eligibility tests.
Exceptions
Article 16(4) says: Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favor of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.
Government can implement special schemes and measures for improving the conditions of certain sections of society: children, women, and the socially and educationally backward classes.
For example:
Reservations in jobs, and in admissions.
Right to Freedom (Given under Article 19, 20, 21(A) and 22 of the Indian Constitution)
This right provides freedom of speech and expression, the right to form associations, the right to move freely and reside in any part of the country, and the right to practice any profession, occupation, or business. For example, a person from one state can settle in another and run a business there.
Protection of life and personal liberty (Given under Article 21)
No person shall be deprived of his life or personal liberty except according to the procedure established by law.
Right to Freedom
The two most important rights in a democracy are equality and freedom, or liberty. Freedoms are defined in such a way that each individual can enjoy her freedom without jeopardising the safety and security of others.
Right to life and personal liberty
The right to life and personal liberty is the most important of all freedom rights. No citizen's life may be taken away from them unless they follow the legal procedure. Similarly, no one's personal liberty can be taken away from them.
What is Preventive Detention?
Ordinarily, a person would be arrested after allegedly committing some crime, but occasionally, a person might be arrested merely because he or she is suspected of engaging in illegal behavior and imprisoned for a period of time without completing the above-mentioned method. Preventive detention is the term for this. It implies that if the government believes a person poses a threat to law and order or the nation's peace and security, that person can be detained or arrested.
This preventive detention can be extended only for three months. After three months such a case is brought before an advisory board for review.
Rights of accused
Our Constitution assures that those accused of different crimes receive adequate protection. We have a tendency to assume that anybody accused of a crime is guilty. No one is guilty unless and until a court has judged them guilty of a crime. A person accused of a crime must also be given an appropriate opportunity to defend herself or himself.
To ensure a fair trial in court the Constitution has provided three rights:
No person would be punished for the same offense more the once
No law shall declare any action as illegal from a backdate, and
No person shall be asked to give evidence against himself herself
Right against Exploitation (Given under Article 23 and 24 of the Indian Constitution)
The constitution prohibits trafficking, forced labor, and child labor.
Millions of individuals in our country are poor and disadvantaged. They might be exploited by others. In our nation, one kind of exploitation is a beggar or unpaid labour. Human beings are bought and sold and used as slaves, which is a closely connected kind of exploitation. The Constitution outlaws both of these.
The Constitution also forbids the employment of children below the age of 14 years in dangerous jobs like factories and mines. With child labor being made illegal and the right to education becoming a fundamental right for children, this right against exploitation has become more meaningful.
Right to Freedom of Religion (Given under Article 25-28 of the Indian Constitution)
This right provides citizens the freedom to choose and practice any religion of their choice. Every citizen has the right to practice, preach and propagate any religion.
Everyone has the freedom to practice the religion of their choice, according to our Constitution. This liberty is seen as a defining feature of democracy. Throughout history, kings and emperors in many areas of the world have prohibited citizens from exercising their right to religious freedom. People who practiced a faith other than the rulers were either punished or compelled to convert to the ruler's official religion. As a result, one of democracy's founding values has always been the right to practice the religion of one's choosing.
Equality of all religions
Because the country is home to a diverse range of religions, the government must ensure that all religions are treated equally. India's government would not look favourably on anyone who does not follow one of the country's recognised religions. To be a prime minister, president, judge, or other public figures, we do not need to be members of any one faith. We've also seen that the right to equality ensures that the government will not discriminate against people of faith when it comes to hiring. The state-run institutions will not preach any religion, provide religious instruction, or favour people of any faith.
Exception
The government has the authority to intervene in religious affairs in order to combat certain societal ills. For example, In the past, the government has made measures to prohibit practices such as sati, bigamy, and human sacrifice. Such limitations cannot be justified in the pretext of interfering with religious freedom, religious liberty, and freedom of worship.
Cultural and Educational Rights (Given under Article 29,30 of the Indian Constitution)
This right given by the constitution allows all minorities (religious or linguistic) to set up their own educational institutions in order to preserve and develop their own culture.
Diversity, according to our Constitution, is our strength. As a result, one of the fundamental rights of minorities is the right to preserve their culture. This position as a minority is not only based on religion, this clause also covers linguistic and cultural minorities.
Minorities are groups of people who share a similar language or religion but are outnumbered by other social groups in a particular area of the country or the country as a whole. Such groups have the right to preserve and develop their culture, language, and script.
Right to Constitutional Remedies (Given under Article 32-35 of the Indian Constitution)
The constitution states that the citizens can move to the court if they believe that their Fundamental rights aree violated by the State.
Our Constitution provides an outstanding set of Fundamental Rights, as most people would agree. However, just putting out a list of rights is insufficient. There needs to be a mechanism to put them into effect and protect them against any attacks on these rights.
According to Dr. Ambedkar, The right to constitutional remedies is the constitution's heart and soul. This is because, in an event of a violation, a person has the right to petition in a High Court or the Supreme Court to have any of his or her basic rights restored.
Writs
The Supreme Court and the High Courts can issue orders and give directives to the government for the enforcement of rights. The courts can issue various special orders known as writs:
Habeas corpus
A writ of habeas corpus is a court order that the person who has been arrested be brought before it. It can also order that an arrested individual be released if the arrest was made in an illegal or unsatisfactory way.
Mandamus
This writ is issued when a court determines that a particular officeholder is not performing legal duties and, as a result, is infringing on an individual's right.
Prohibition
When a lower court considers a case that is outside its jurisdiction, a higher court (High Court or Supreme Court) issues this writ.
Quo Warranto
If the court determines that a person is holding an office without being entitled to it, it issues a writ of quo warranto prohibiting that person from operating in that capacity.
Certiorari
The court issues this writ when an officeholder, a subordinate court, or another authority requests that a case standing before them be transferred to a higher authority or court.
Apart from the judiciary, numerous additional procedures for the protection of rights have been developed in recent years. You've probably heard of the National Commission on Minorities, the National Commission on Women, the National Commission on Scheduled Castes, and the Indian Constitution at Work, etc. These organisations safeguard the rights of women, minorities, and others. Aside from that, the National Human Rights Commission was created by legislation to safeguard basic and other types of rights.
Conclusion
These fundamental rights are made for every Indian citizen for their proper development. The judiciary has the authority and obligation to ensure that fundamental rights are not violated by government acts. The judiciary has the power to declare executive and legislative activities unlawful if they infringe on fundamental human rights or impose excessive restrictions on them. Fundamental rights, on the other hand, are not rights that are absolute or limitless. Our basic rights can be subjected to legitimate limits by the government.
The writer is pursuing a degree of BA.LL.B (Bachelors of legislative law)
From, Department Of Law, Maharshi Dayanand University (Rohtak) Haryana, INDIA.
Reach him at Instagram @shivaanshvermaa
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